Tag Archives: secular courts

Often, and not just in popular perception, the Middle Ages is characterised as static, trapped under the heavy weight of the past (indeed, an influential strand of modern argument even suggests that people in the Middle Ages had no real concept of the future at all). It’s certainly true that old texts played an absolutely crucial role in medieval western society – the Bible, of course, but also other works inherited from Late Antiquity. Yet of course even the most ancient texts require interpretation, and here there was room for creativity and, whether people knew it or not, change.

A good example of this, which I’ve come across in the course of my current research, is provided by a couple of passages in the influential collection of church law put together by the lawyer Gratian in the middle of the twelfth century. Gratian used two texts (C.11, Q.1, D.18 and D.31), attributed to Pope Pius and Pope Fabian, to show that clerics who disobey or attack their bishops are to be handed over to the secular court (traditiocuriae) for punishment, after their deposition. Gratian found this a bit difficult to square with his general position, that clerics should not be punished by secular courts. But he argued that since it only applied to civil, not criminal, cases, it was just about OK.

What Gratian didn’t know was that Popes Fabian and Pius were not, as he assumed, ancient Romans, but rather figments of fertile ninth-century imagination. They were created as part of the Pseudo-Isidorian decretals, a largely fictional text dreamed up for reasons that remain to this day somewhat mysterious (though historians are getting there!). Still, its compilers did not invent their texts from scratch, and for the ‘traditio curiae’ bit, they drew on authentic Roman law: all they really did was put it instead into the mouths of made-up popes. So up to a point, Gratian was indeed drawing on genuinely ancient texts, even if they had been filtered through ninth-century ingenuity.

But that Roman law had not meant what Gratian, or quite probably Pseudo-Isidore, thought it meant. In late Roman law, the curia was the city council, serving on which was a major obligation for late Roman elites, since it involved taking responsibility for raising the city’s taxes – a risky thing to do. Clerics were usually exempt from this burden, but under certain circumstances, that exemption could be removed. That was what the Roman law had originally meant, when it talked about the traditio curiae: it was about returning the (former) clerics back into ruinous curial service.

Just what Pseudo-Isidore thought it meant in the ninth century isn’t entirely clear. But by the twelfth century, when Gratian was writing, curia definitely meant something entirely different: it meant a prince’s ‘court’. It’s no surprise then that Gratian happily interpreted the traditio curiae along lines that made sense to him: for Gratian, it meant handing the cleric over to the ‘secular’ court for disciplining. In this way, Gratian unwittingly transformed late Roman urban administration into practices of feudal justice, with significant consequences for later history: an invention of ‘tradition’ in quite a literal sense.

The take-home point in all this isn’t though simply that Gratian got it wrong. It’s a reminder of something that should be obvious, but that bears restating. Even when they’re copied faithfully across the generations, texts don’t – can’t – mean exactly the same thing a thousand years after they were written, when so much else has changed. Texts, even religious ones, always need context to make sense of them. To assume that any old text doesn’t need interpretation just makes the interpretative act invisible. Historians, in a word, are indispensible. But that you knew already.